Akkayanaicker Vs. A.A.A.
Kotchadainaidu & Anr [2004] Insc 571 (23 September 2004)
Ashok Bhan & S.H. Kapadia
Bhan, J.
Appellant/decree-holder being aggrieved against the judgment and order of
the High Court of Judicature at Madras in CRP No. 3540 of 1992 wherein the High
Court while allowing the Civil Revision Petition filed by the respondent has
dismissed the execution petition filed by the appellant, has filed the present
appeal by leave of the Court.
Appellant/decree holder (hereinafter referred to as "the decree
holder") filed O.S. No. 322 of 1972 seeking a decree in the sum of Rs.
18,912/- along with agreed rate of interest @ 12% p.a. being the principal and
the interest due on the promissory note dated 3.6.1968 executed by the
respondent/judgment debtor (hereinafter referred to as "the judgment
debtor"). The suit was decreed on 2.5.1973. This decree became final
between the parties.
Decree holder filed execution petition No. 226 of 1973 but the proceedings
in the same were closed because of the legislative intervention of the Tamil
Nadu Indebted Agriculturists (Temporary Relief) Ordinance, 1975 (Ordinance 1 of
1975). As per Section 3 no suit for recovery of a debt or an application for
execution of a decree for payment of money passed in a suit for the recovery of
a debt could be instituted against an agriculturist in a civil or revenue court
before the expiry of a year from the date of the commencement of the Ordinance.
Section 4 provided for the stay of proceedings in the suits or applications of
the nature mentioned in Section 3 in which relief claimed was against the
agriculturist, not being proceedings for the amendment of pleadings or for the
addition, substitution, or the striking off of parties, but otherwise inclusive
of proceedings consequent on orders or decrees made in appeals, revision
petitions, or applications for review.
Section 5 provided that in computing the period of limitation or limit of
time prescribed for a suit for the recovery of a debt or an application for the
execution of a decree passed in such suit, the time during which the
institution of the suit or making of the application was barred by Section 3 of
the Ordinance or during which the plaintiff or his predecessor-in-title
believing in good faith that Section 3 of the Ordinance applied to such suit or
such application refrained from instituting the suit or making the application
shall be excluded. The execution of the decree already obtained was suspended
for a period of one year.
The legislature thereafter enacted Tamil Nadu Indebted Agriculturists
(Temporary Relief) Act, 1975 [Act 10 of 1975] with the object to provide
temporary relief to the indebted agriculturists to spare them from the
distractions and expenditure involved in litigation launched by their creditors
in order that the maximum possible advantage may result to the State in the
matter of production of food crops. Section 3, as in the Ordinance, created a
bar to the institution of the suits or applications for execution of a decree
for payment of money passed in a suit against an agriculturist for a period of
one year from the date of the commencement of the Act. Section 4 provided for
stay of proceedings if the suits or applications for execution of a decree had
already been instituted and Section 5 provided for exclusion of time in
computing the period of limitation or limit of time prescribed for a suit for
the recovery of the debt or an application for execution of a decree passed in
such suit. After the expiry of one year of the Act 10 of 1975, the legislature
enacted The Tamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1976
[No. 15 of 1976] with the same object as of Act 10 of 1975 and with similar
provisions of bar of institution of suits and the applications for execution,
stay of proceedings and exclusion of time while computing the period of
limitation for filing the suits or the applications for execution of a decree.
Thereafter, the legislature enacted The Tamil Nadu Debt Relief Act, 1978 [Act
No. 40 of 1978] for scaling down the debts obtained by the agriculturists
including the decrees already passed. Judgment debtor filed an application for
scaling down the decree dated 2.5.1973 in terms of Act 40 of 1978. Executing
Court scaled down the decree on 18.10.1979 in terms of the Act 40 of 1978.
The decree holder filed execution petition No. 412 of 1989.
The judgment debtor filed application E.A. No. 399 of 1991 in E.P. No. 412
of 1989 stating therein that the execution petition filed by the decree holder
in the year 1989 was beyond the period of limitation, the same having been
filed after 12 years from the date of the passing of the original decree dated
2.5.1973. It was prayed that the proceedings in the execution petition No. 412
of 1989 be terminated. The case of the decree holder was that the execution
petition was within limitation as the same had been filed within 12 years of
the scaling down of the original decree and the passing of the amended decree
on 18.10.1979. The executing court did not accept the contention advanced on
behalf of the Judgment debtor and dismissed E.A.
No. 399 of 1991 filed by them. It was held that limitation to file the
execution petition under Article 136 of the Limitation Act, 1963 would
start from the date the decree was amended as it is from that date the decree
became enforceable.
The judgment debtor being aggrieved against the order passed by the
executing court filed CRP No. 3540 of 1992 in the High Court of Judicature at Madras
which was accepted. The High Court held that E.P. No. 412 of 1989 was filed
beyond the period of limitation. That the limitation of 12 years for execution
of the decree would start running from the date of the passing of the original
decree i.e. 2.5.1973 and not from the amended decree dated 18.10.1979.
Aggrieved against the aforesaid, special leave petition was filed by the decree
holder in which the leave has been granted.
It may be mentioned here that the decree holder filed execution petitions 62
of 1980, 12 of 1981 and 681 of 1984.
Thrice arrest warrants were issued against the judgment debtor. Once he was
arrested but he escaped from the custody and absconded. On an application filed
by the decree holder, his property was brought to auction sale. Judgment debtor
deposited Rs. 50/- and Rs. 100/- towards the payment of the decreetal amount.
The case was adjourned innumerable times at the requests of the judgment debtor
to pay the decreetal amount but in spite of the arrest and the publication for
auction sale of his property the judgment debtor failed to deposit the
decreetal amount.
Shri Nedumaran, learned counsel appearing for the decree-holder has argued
that for the purpose of Article 136 of the Limitation Act, 1963 (hereinafter
referred to as "the Act") the starting point of limitation is not the
date of the decree but the date when the decree becomes enforceable. The
proceedings in execution application No. 226 of 1973 filed by the decree-holder
were closed and adjourned sine die because of the legislative intervention of
Tamil Nadu Indebted Agriculturists (Temporary Relief) Ordinance, 1975 and
thereafter by the Act 10 of 1975 and Act No. 15 of 1976 which provided for the
stay of filing of the suits and the applications for execution of a decree for
recovery/payment of money and the period during which the execution of the
decrees remained suspended was to be excluded. When there was a legislative bar
for the execution of a decree and later due to legislative intervention the
decree had to be scaled down and amended then enforceability of decree shall
commence when the bar ceases or from the date the decree is amended and scaled
down. The decree was scaled down on 18.10.1979 in terms of Act No. 40 of 1978
and it is from that date the decree became enforceable. Reckoned the period of
12 years from this date as provided under Article 136 of the Act the execution
application filed by the decree-holder in 1979 was within the period of
limitation.
As against this Shri Rishiraj Borooah, learned counsel appearing for the
respondents strenuously contended that the period of 12 years for execution of
the decree is to be reckoned from the date of the passing of the original
decree and not from the date the decree was scaled down and amended.
On the above contentions, it has to be determined whether the execution
application filed by the decree-holder was within the prescribed period of
limitation? We shall commence the determination of the question by first
reading Article 136 of the Act which is as follows:
"Description of suit Period of limitation Time from which period begins
to run 136. For the execution of any decree (other than a decree granting a
mandatory injunc- tion) or order of any civil court Twelve years (when) the
decree or order becomes enforceable or where the decree or any subsequent order
directs any payment of money or the delivery of any property to be made at a
certain date or at recurring periods when default in making the payment or
delivery in respect of which execution is sought, takes place: Provided that an
application for the enforcement or execution of a decree granting a perpetual
injunction shall not be subject to any period of limitation." From the
perusal of Article, extracted above, it is clear that the execution of a decree
(other than a decree granting a mandatory injunction) or order of any civil
court, a period of 12 years is prescribed. Column 3 is in two parts indicating
the time from which the period of limitation begins to run, that is, the
starting point of limitation; the same are (i) when the decree or order becomes
enforceable and (ii) where the decree or any subsequent order directs any
payment of money or the delivery of any property to be made at a certain date
or at the recurring period when default in making the payment or delivery in
respect of which execution is sought, takes place. Proviso says that there
shall be no period of limitation for enforcement or execution of a decree
granting a perpetual injunction. In the present case, we are concerned with the
first of the above- mentioned starting points, namely, when the decree or order
becomes enforceable.
Before the enactment of the Limitation Act, 1963 (Act 36 of 1963) the
limitation for the purposes of execution had been dealt with under Section 48
of the Civil Procedure Code (for short "CPC") and Articles 182 and
183 of the Limitation
Act of 1908. We are not concerned with Article 183 in the present case as
the same was applicable to execution of decrees and orders of Courts
established by Royal Charter and of the Supreme Court. Section 48 of the CPC
and Article 182 covered the execution of the decrees and orders of all the
civil Courts.
Section 48 stated that "where an application to execute a decree not
being a decree granting an injunction has been made, no order for the execution
of the same decree shall be made upon any such application presented after the
expiration of 12 years from the date of the decree sought to be executed."
Section 48 therefore provided a maximum period of 12 years before the expiry of
which any fresh application for execution could be made and a decree ceased to
be enforceable after 12 years. Article 182 governed the first and the
successive execution applications which the decree-holder could file within
such maximum period under the CPC. Article 182 also provided that such
applications should be made within a period of three years from the various
points of time specified in the Article. A competent execution petition had to
satisfy both the requirements.
The Law Commission of India in its third report felt that Article 182 was a
very fruitful source of litigation and had become a weapon in the hands of both
the dishonest decree- holder and the dishonest judgment-debtor. The Law
Commission in its report recommended that the maximum period of limitation for
the execution of a decree or order of any civil court should be 12 years from
the date when the decree or order became enforceable (which usually is the date
of the decree) or where the decree or subsequent order directs any payment of
money or the delivery of any property to be made at a certain date or at
recurring periods, the date of the default in making the payment or delivery in
respect of which the applicant seeks to execute the decree. It was recommended
that there was no need for a provision compelling the decree- holder to keep
the decree alive by making an application every three years. Normally, a
decree-holder is to realize his decree within a period prescribed but an
exception was required to be made to the effect that the Court may order the
execution of a decree upon application presented after the expiration of a
period of 12 years, where the judgment-debtor had by fraud or force prevented
the execution of the decree at sometime within the 12 years immediately from
the date of the application. That Section 48 of the CPC may be deleted and its
provisions may be incorporated in the Act. It was recommended that Article 183
should be deleted.
In pursuance to the recommendations made by the Law Commission of India
Section 48 of the CPC was repealed by Section 28 of the Act and Article 182 was
replaced by the present Article 136. As noticed earlier in this judgment,
Article 136 of the Act being the governing statutory provision, prescribes a
period of 12 years when the decree or order Abdul Salam, 2001 (7) SCC 573,
after referring to the meaning ascribed to the word "enforce" from
various dictionaries held that the words "when the decree or order becomes
enforceable" should be read in their literal sense and as per intention of
the legislature 12 years period is to be reckoned from the date the decree
became enforceable. It was observed that the language used by the legislature
in Article 136 if read in its proper perspective must have been to clear up any
confusion that might have arisen by reason of the user of the expression
"the date of the decree or order" which was used in the earlier Act.
The requirement of the Limitation Act
in the matter of enforcement of a decree is the date on which the decree
becomes enforceable or capable of being enforced. The intention of the
legislature being clear and unambiguous a meaning other than the literal
meaning of the words used in the statute did not arise.
Section 48 of CPC which provided for a limitation of 12 years for the
execution of a decree has been replaced by Article 136 of the Act. The words
'when the decree becomes enforceable' which find place in Article 136 were not
there in Section 48 of CPC. Because of the change brought about by the
legislature the starting point of limitation would be the date on which the
decree becomes capable of execution. The amendment carried out in the decree in
the present case was substantial and not inconsequential like correction of
clerical or arithmetic mistake under Section 152 of CPC. The decreetal amount
was substantially reduced because of the scaling down of the decree in terms of
Act 40 of 1978. A learned Single Judge in Fatimunnisa Begum vs. Mohd.
Zainulabuddin Saheb, AIR 1986 AP 355, relying upon the expression in Article
136 of the Act "when the decree becomes enforceable" which is not
there in Section 48 of the CPC concluded that the decree which was subjected to
an amendment can be enforced only as amended and the period of limitation would
start only from the date of the amendment of the decree. The learned Single
Judge held as follows:
"The next decision on which reliance was placed was Ouseph v. Lona, AIR
1979 Ker. 14.
This decision undoubtedly supports the case of the respondents. But I am
unable to agree with the principle enunciated in this decision.
No doubt, the principle of S. 48 is now embodied in Article 136 which
provided for 12 years period of limitation for the execution of a decree, but
the starting point must be determined with reference to the express language of
Article 136 which says "when the decree becomes enforceable". These
words were not there in S. 48. In my opinion, the proper interpretation would
be, to reckon the period from the date of the decree that is sought to be
enforced, i.e., if there is an appeal, it is the appellate Decree and if there
is an amendment, it is from the date of the amended decree. As I said earlier,
even in a case of affirmance, if time begins to run from the date of the
appellate decree and not the original decree, much more so in the case of a
decree which is amended as the original decree no longer retains its form. The
amendment gives a fresh starting point of limitation. Even though Article 136
does not contain the words 'in case of an appeal', the Courts have construed
that it is the appellate decree that is relevant as ultimately it is that
decree which becomes capable of execution. In the case of an amendment, the
original decree no longer retains its form and what is sought to be executed is
the amended decree. Therefore, the words 'enforceable' must be construed with
reference to the decree that is sought to be enforced. Reckoned from the date
of the amendment, the execution petition filed is within time." In our
opinion, learned Single Judge in the above case has correctly interpreted the
scope of Article 136. We agree with the view expressed that in case of
amendment the original decree no longer retains its form and what is sought to
be executed is the amended decree. The word "enforceable" has to be
construed with reference to the decree that is sought to be enforced. In the
present case, as stated above, the decree- holder filed an application for
execution in the year 1973 itself but its proceeding were closed and adjourned
sine die because of the legislative intervention which continued till the
legislature enacted Act No. 10 of 1978 and provided for the scaling down of the
debts obtained by the agriculturists including decrees already passed. In
pursuance to this legislative enactment the decree passed in favour of the
decree- holder was substantially scaled down and the decree was amended on
18.10.1979 in terms of the Act No. 40 of 1978. It is this decree which became
enforceable. Prior to this date the decree-holder could not enforce his decree
because of the legislative intervention. The original decree could not be
enforced. It is only the amended decree which could be enforced. When there was
a legislative bar for the execution of a decree and later due to legislative
intervention the decree had to be scaled down and amended then enforceability
of decree shall commence when the bar ceases or from the date the decree is
amended and scaled down. If the period of 12 years is counted from the date of
the amendment of the decree then the execution petition filed by the
decree-holder on 18.9.1989 is within the period of limitation.
Further, on verification of the record we find that the decree-holder has
all through been vigilant and initiated several proceedings to recover the
decreetal amount. The earlier execution application filed in the year 1973 was
adjourned sine die because of the legislative intervention. After the amendment
of the decree he filed execution petition Nos. 62 of 1980, 12 of 1981 and 680
of 1984. Thrice arrest warrants were issued against the judgment-debtor. Once
he was arrested but he escaped from the custody and absconded. His property was
put to sale. Judgment-debtor deposited Rs. 50/- and Rs. 100/- towards the
payment of decreetal amount. The case was adjourned a number of times at the
request of the judgment- debtor but in spite of the adjournments given to
satisfy the decree, his arrest and publication to sell his property, the
judgment-debtor had failed to deposit the decreetal amount.
For the reasons stated above, this appeal is accepted with costs. Order of
the High Court is set aside and that of the executing court is restored. The
executing Court shall now proceed with the execution petition and dispose it
off in accordance with law. Since the decree is of the year 1973 we would
request the executing Court to dispose of the execution petition on priority
basis and if possible within a period of three months from the date of the
receipt of the copy of this order.
Office is directed to remit back the original record to the executing Court
immediately.
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